APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
 HCJAC 34
Appeal No: NO.
OPINION OF THE COURT
delivered by LADY PATON
APPEAL AGAINST SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: Taylor, Solicitor Advocate; Gilfedder & McInnes
Respondent: Bain Q.C., Advocate Depute; Crown Agent
16 April 2010
Return and recall orders: sections 16 and 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993
 An offender on licence after early release under the provisions of the Prisoners and Criminal Proceedings (Scotland) Act 1993 - "the 1993 Act" - may be brought back to prison to serve all or part of the unexpired portion of his sentence. Two separate statutory regimes apply, one directed to the protection of the public, and one to the punishment of the offender.
 Protective regime: Section 17 of the 1993 Act gives the Scottish Ministers a discretionary power to revoke the offender's licence and recall him to prison at any time, whether or not he has committed a new offence while on licence. Such a recall may occur on the recommendation of the Parole Board (whose principal concern is public safety), or where in the opinion of the Scottish Ministers recall is "expedient in the public interest and it is not practicable to await [the Parole Board's] recommendation": section 17(1). On recall, the offender's case must, in terms of section 17(3), be referred to the Parole Board. The Board may decide that the offender should be re-released, possibly with varied or additional conditions. The Ministers must comply with the Board's decision: section 17(4) and (4AA). Thus a recall in terms of section 17 may properly be characterised as a protective measure.
 Punitive regime: By contrast, the return of the offender to custody in terms of section 16 of the 1993 Act is a punitive measure, imposed by the court. The provisions of section 16 are not triggered unless and until the early release offender has been found guilty of committing a new offence while on licence, thus violating the trust placed in him when he was granted early release: McKimm v Carnegie 2000 SCCR 466 paragraph . The court which imposed the original sentence then decides whether or not to order the offender to be returned to custody for the whole or part of the unexpired portion of his original sentence outstanding as at the date of the new offence: section 16(2). The court also decides whether the balance of the original sentence is to be served before the sentence for the new offence, or concurrently with that sentence: section 16(5).
 The possibility of a section 16 return order arises when the offender on licence for the original offence appears before a court for sentence for the new offence. Although the court is not obliged to make an order under section 16, it has a duty to consider whether or not to invoke that section, and accordingly the issue should be drawn to the court's attention: McFadyen v Todd 1999 SCCR 463; McKimm v Carnegie cit sup. Where the court dealing with the new offence is inferior to the court which imposed the sentence in respect of the original offence, it cannot itself order the offender's return, but may refer the case to the superior court, which may then make a return order: section 16(2)(b). Thus where the sentence for the original offence was imposed by the High Court either at first instance or on appeal, but the new offence comes before a sheriff court, the sheriff, before sentencing in respect of the new offence, must consider whether or not to remit the case to the High Court.
 Matters which may usefully be kept in mind when the imposition of a section 16 return order arises for consideration include the following:
(a) The court may take into account inter alia the offender's history; the length of time between early release and re-offending; the nature and gravity of the new offence, and whether it is analogous to the original offence which ultimately resulted in the early release: Renton & Brown, Criminal Procedure (6th ed) paragraph 23-19.1. Having considered matters, it is always open to the court not to impose a section 16 order.
(b) The court must specify the precise length of the return order, which may be for the whole of the unexpired portion of the sentence (calculated from the date of the new offence), or for any part thereof.
(c) It is not competent to back-date a return order: section 16(2)(a)(i); Barr v HM Advocate 1997 SLT 1004, at page 1006E-F. The return order must run from the date on which it is imposed.
(d) The court must specify whether the period imposed in respect of the return order is to run before (and be followed by) the sentence to be imposed in respect of the new offence; or whether the return order is to run concurrently with the sentence in respect of the new offence: section 16(5).
(e) The court may impose a section 16 return order whether or not the offender has already been recalled to prison by the Scottish Ministers in terms of section 17: cf McFadyen v Todd 1999 SCCR 463; and R v Sharkey  1 WLR 160 (overruling R v Governor of Elmley Prison ex parte Morton  Crim L R 333 on this point). As Lord Bingham explained in Sharkey:
"There is nothing in the express terms of either section 39 [the English equivalent of section 17] or section 40 [the English equivalent of section 16] which provides that the exercise of powers under section 39 precludes the exercise of powers under section 40. As already shown, the purpose, application and effect of revocation and recall under section 39 are different from an order under section 40. The two sections provide different regimes...It seems to us most unlikely that Parliament intended the exercise of the protective power under section 39 to preclude exercise of the court's punitive power under section 40. We see no argument in principle against our preferred construction; indeed, the arguments in principle appear to be in favour of it..."
If the court decides to impose a section 16 return order in relation to an offender who has been recalled in terms of section 17, the section 16 return order must run concurrently with the section 17 return order, for two reasons: (i) the terms of section 16(2)(a)(i), which provides that the return order must run from the date on which it is imposed; (ii) the terms of section 204A of the 1995 Act, to which we now turn.
Whether sentence for new offence to be consecutive or concurrent: section 204A
 Section 204A of the Criminal Procedure (Scotland) Act 1995, which came into effect on 30 September 1998 (SI 1998/2327), provides:
"A court sentencing a person to imprisonment or other detention shall not order or direct that the term of imprisonment or detention shall commence on the expiration of any other sentence from which he has been released at any time under the existing or new provisions within the meaning of Schedule 6 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 [i.e. the early release provisions]"
Thus where section 204A applies, the court is restricted to imposing a sentence to run concurrently with any balance of the sentence being served.
 Section 204A applies where an offender has been recalled in terms of section 17. Accordingly if the offender is to be given a new sentence in respect of another offence committed while on licence, it is incompetent for a court to impose the new sentence to run consecutively to the balance of the original sentence being served by virtue of the recall order. Any new sentence must be made concurrent with the balance of the original sentence: cf McFadyen v Todd cit sup; HM Advocate v Graham 1999 GWD 26-1235; Thomson, petitioner 2000 GWD 8-289; McIntosh v HM Advocate 2003 GWD 31-868.
 Where however an offender has been returned in terms of section 16, the return order itself will specify whether the period imposed in respect of the return order is to run before (and be followed by) the sentence to be imposed in respect of the new offence; or whether the return order is to run concurrently with the sentence to be imposed in respect of the new offence: section 16(5). Accordingly the court imposing the new sentence should comply with the express terms of the return order.
Full information for the sentencing court
 It will be seen from all of the above that it is essential that a sentencing court is fully informed of any matters relating to an offender which would give rise to issues in terms of sections 16 and 17 of the 1993 Act, and section 204A of the 1995 Act. We therefore endorse the comments of the appeal court in McIntosh v HM Advocate cit sup, where it was observed that:
"[p]roblems of the kind which have emerged in this case are unhappily not infrequent. One of the reasons why they may arise is because of the ignorance of the court that the circumstances set forth in section 204A in fact exist, that is to say, that the panel with whom they are dealing has in fact been released at any time under the provisions mentioned from the earlier sentence. In our view, it would be very desirable for the Crown to draw the attention of the court to such a situation wherever it exists and wherever there is a possibility that the court may wish to impose a consecutive sentence. Only if that is done, can the existence of this kind of problem be minimised".
The circumstances in the present case
 According to the sheriff's report, the appellant (then aged 20) was remitted to the High Court on 21 October 2004 for sentencing for a serious assault. He received an extended sentence of 9 years (with a custodial part of 6 years). In about October 2008 he was released on licence. On 3 November 2008 at Glasgow District Court he was granted bail in relation to a charge of car theft. On 8 December 2008 he committed new offences, namely having with him in a public place an offensive weapon (a baseball bat), and assaulting a police officer by punching, kicking and striking him with the baseball bat, both offences committed while on bail. As a result of that behaviour he was recalled by the Scottish Ministers on or about 22 December 2008 in terms of section 17 of the 1993 Act. On 9 March 2009 the appellant pled guilty to the new offences at a first diet at Glasgow Sheriff Court. The sheriff was not given full information about the appellant's release and recall, nor was he alerted to the possibility that a section 16 order might be made. In particular he was not informed whether the appellant had been released under the early release provisions of the 1993 Act or on some other basis such as a home detention order. As a result, the sheriff sentenced the appellant in respect of the new offences without first considering whether to remit the case to the High Court in terms of section 16. After allowing a discount in respect of pleas, the sheriff imposed a sentence of 24 months in relation to the offensive weapon, with a consecutive sentence of 12 months in respect of the assault. He ordered those sentences of 36 months in total to be served consecutively to the sentence which the appellant was currently serving.
 Before us it was not disputed that the sheriff should first have decided whether or not to remit the appellant's case to the High Court for its consideration of the possible imposition of a section 16 return order. Nor was it disputed that it was incompetent for the sheriff to impose a sentence to run consecutively to the sentence which the appellant was currently serving, in view of the terms of section 204A and the fact that the appellant has been recalled in terms of section 17 of the 1993 Act. In all the circumstances we shall quash the sentences imposed by the sheriff on 9 March 2009, and remit to the sheriff to proceed as accords. Full information relating to the dates of the appellant's release on licence and recall by the Scottish Ministers should be provided at further court hearings. The submissions made before the sheriff, recorded at paragraph  of his report, suggest that the appellant committed the new offences only 8 weeks after his early release on licence. It would clearly be important to know whether the appellant did indeed re-offend so soon after being released on licence.
 In his Note of Appeal the appellant also challenges the length of the sentences imposed in respect of the new offences, and the fact that one was made consecutive to the other. However as it became clear during the appeal hearing that the sentences would require to be quashed, we did not hear any submissions on those matters. Mr Taylor expressly reserved his right to present those submissions at a later date.